Reasonable Doubt and Disagreement

Posted: 18 May 2017

See all articles by Youngjae Lee

Youngjae Lee

Fordham University School of Law

Date Written: May 18, 2017


The right to trial by jury and the proof beyond a reasonable doubt requirement are two of the most fundamental commitments of American criminal law. The question this Article asks is how the two are related, that is, whether disagreement among jurors implies anything one way or the other about whether the beyond a reasonable doubt standard has been satisfied. In other words, does the due process requirement of the proof beyond a reasonable doubt standard also require jury unanimity in criminal cases? In recent years, there has been an explosion of interest among philosophers about the epistemological significance of disagreement. Drawing on this literature, this Article considers the “equal weight view” and its implications for the unanimity rule in criminal jury decision-making. The equal weight view says that, roughly speaking, when people disagree on a topic, each view should be given equal weight. This Article concludes that, with certain assumptions, the equal weight view implies that the unanimity rule is required as a way of enforcing the beyond a reasonable doubt requirement. This Article further concludes, however, that jurors should not always be instructed to apply the equal weight view in their deliberation. Jurors, when applying crime definitions to particular cases, make determinations both about historical facts — concerning questions about what happened — and about normative issues — concerning the evaluative significance of what happened — through moral terms like “reckless,” unjustifiable,” “without consent,” “depraved,” “cruel,” and “heinous,” which are common in criminal law. This Article argues that while the equal weight view should guide the jurors in determining factual issues, it is not the correct model for moral issues, not only because the equal weight view would imply that acquittals are appropriate in many cases involving controversial moral questions but also because having the jurors follow it would undermine the basic justification for having the criminal jury as an articulator and enforcer of morality.

Suggested Citation

Lee, Youngjae, Reasonable Doubt and Disagreement (May 18, 2017). Legal Theory, Forthcoming. Available at SSRN:

Youngjae Lee (Contact Author)

Fordham University School of Law ( email )

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